Saturday, November 2, 2013

PASSPORT CANCELLATION ISSUE

Let’s face the passport cancellation case

Joaquin G. Bernas, S.J.

If we examine the constitutional law on the freedom of
movement of citizens today as it has evolved, we might be surprised to see that
it has the same protective effect as the
law in 1919 which prevented Mayor Justo Lukban of Manila from deporting 180
prostitutes to Davao in order preserve the moral standards of Manila.

This was before
the 1935 Constitution and we were still living under the Organic Act given
tous the by Unted states Congress. It
was our initial Bill of Rights.

Commenting on the
law given to us by the US, Justice Douglas, in Aptheker v. Secretary of State,said:"Free movement by the
citizen is of course as dangerous to a tyrant as free expression of ideas or
the right of assembly and it is therefore controlled in most countries in the
interest of security . . . .That is why
the ticketing of people and the use of identification papers are routine
matters under totalitarian regimes."

Hold departure
orders and cancellation of passports is of a piece with this draconian
practice.

Freedom of
movement in Philippine Constitution has evolved through the 1935, 1973, and 1987
constitutions. What is the current constitutional law on the subject?

The Manilaprostitutes in 1919 were being sought to beexiled under a provision which simply said:
"The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired."The teaching then was
that no one could be compelled to change his or her home except in accordance
with what the law prescribed.Thus, when
the Mayor of Manila sought to cleanse the city of prostitutes by sending them
to Davao, the Supreme Court stopped him.The Court then said: "If [the City Mayor and Chief Police can take
to themselves such power, then any official can do the same . . .And if a prostitute could be sent against her
wishes and under no law from one locality to another within the country, then
officialdom can hold the same club over the head of any citizen."

That was 1919.

The 1935
Constitution later provided: “The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired.”Impairment of
the liberty therefore was not discretionary with just anybody.It must be within the limits prescribed by
law, that is, the grounds for the limitation must be found in law and the proper
officer must be designated.

The 1973
Constitution altered the 1935 text to read: “The
liberty of abode and of travel shall not be impaired except upon lawful order
of the court, or when necessary in the interest of national security, public
safety, or public health.”

Under this
provision even without a court order the liberty of abode and of travel could
be impaired by an officer “in the
interest of national security, public safety, or public health.”The officer, although unnamed, is given
the discretion to determine what will impair national security, public safety,
or public health.

Drastic attempts
by the government to control the travel of citizens during the period of
martial law did reach the Court.The
curtailment took the form of denial of exit permits.The Court had occasion to warn the Travel
Processing Center not to treat the constitutional guarantee of the right to
travel as an empty phrase in a pauper’s will.

The 1987
Constitution Commission, perceiving the weakness of the 1973 text strengthened
the guarantee by splitting freedom of movement into two distinct sentences and
treating them differently.The liberty
of abode is treated in a separate sentence.It may be impaired only "upon lawful order of the court," and
the court is to be guided by "the limits prescribed by law" on the
liberty itself.The clear intent was to
proscribe practices like "hamletting"during the martial law years.

As to liberty of
travel, under the 1987 law, it could be impaired even without court order, but
the appropriate executive officer is not armed with arbitrary discretion to
impose limitations.He or she can impose
limits only on the basis of "national security, public safety, or public
health" and "as may be
provided by law, " a phrase which was not in the less libertarian 1987
Constitution.

As can be seen, it
was only under the 1973 Constitution that an officer, other than a judge, could
have the discretion to determine whether national security, public safety, or
public health is being impaired. For that reason, the 1987 Constitutional
Commission added the phrase “as may be
provided by law.”

But you may have
noticed that, whenever the Secretary of Justice tries to justify her desire to
cancel the passport of some senators and others, she cites the 1973 text which
does not have the phrase “as may be provided by law.”

Nevertheless the
brave woman seems stymied by the Philippine Passport Law which lists the
groundsfor cancellation of a passport:
“1. When the holder is a fugitive from justice;2. When the holder has been convicted of a criminal offense: Provided,
That the passport may be restored after service of sentence; or 3. When the
passport was acquired fraudulently or tampered with.”